from the go-back-to-bed,-America,-your-government-is-in-control dept

The escalating build-out of the American surveillance state since 9/11 can't be attributed to any one factor. There have been several contributors, most of which have used the omnipresent "threat" of terrorism as leverage to increase governmental power and control at the expense of its citizens. But one undeniable aspect is the fact that two consecutive presidents have recast their presidential responsibilities, as Micah Zenko points out at Foreign Policy.

When asked last September if he personally chose which individual terrorist suspects could be targeted with lethal force, President Barack Obama gave a response that would have astounded the founding fathers: "What is absolutely true is that my first job, my most sacred duty, as president and commander in chief, is to keep the American people safe." This is false. As the presidential "Oath or Affirmation" in the Constitution reads: "I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

As Zenko states, Obama should know better. After all, he spent more than a decade lecturing on constitutional law at the University of Chicago. But his predecessor led the way, informing Americans that "safety" would trump rights.

George W. Bush told a cheering crowd at the 2004 Republican National Convention: "I believe the most solemn duty of the American president is to protect the American people.

While on the campaign trail, Obama vowed to correct Bush's skewed priorities. But rather than follow through on that promise, he has gone the other direction, expanding on his inherited policies and defending various agencies accused of abuse. Unfortunately, once this mindset is in place, it is almost impossible to roll back. The policies it creates only move in one direction.

The essential and enduring feature of both post-9/11 presidents has been their shared contention that their core objective -- and by extension, that of the executive branch -- is to protect U.S. citizens from one particular form of harm: terrorist violence. Both success and failure at achieving this objective have justified the expansion of additional authorities and tools. If there are no terrorist attacks, then all policies in place must remain, but when terrorist plots are revealed or the rare attack occurs, then additional tools and secrecy are mandated.

The executive branch is a key part of the system of checks and balances this country's founders mandated in order to prevent the sort of mission creep and rights erosion occurring today. Instead of protecting the Constitution and their constituents, two consecutive presidents have relegated it to the background, preferring to pursue the unobtainable: safety and security.

Other government agencies are tasked with protecting the public. The executive branch is ultimately responsible for preventing abuses and excesses. Instead, this branch has willingly paved the way for a surveillance network that undermines protections and rights in exchange for vague assurances of security.

from the 4th-amendment-is-dead dept

I had a busy day on Monday, so it took a bit of time for me to finally get around to reading the full Supreme Court ruling in the Maryland v. King case, in which the court ridiculously ruled that law enforcement can take DNA samples from everyone arrested for a "serious" new crime in the hopes that it might help solve old crimes. We've discussed this issue in the past, but the reasoning of the majority ruling in the Supreme Court is rather horrifying. It's interesting to see that the court did not split along its "traditional" lines. Scalia split with Alito, Thomas and Roberts -- who often form a single voting block, while Breyer also was on the other side of his more natural allies, Ginsburg, Sotomayor and Kagan. Kennedy is the usual "swing" vote, and wrote the decision here, decimating the basics of the 4th amendment. I mean absolutely decimating it.

Kennedy tries to argue that taking a DNA sample from someone arrested is a perfectly natural part of the process of identifying them, but he goes much, much further. Just the fact that he uses this line is when you know the 4th Amendment is in trouble:

To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis.

In other words, I'm about to come up with a bunch of rationalizations as to why we can ignore the 4th Amendment here. The basic argument is a sort of blanket "well, the police need to identify people" argument:

The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accu­rate way to process and identify the persons and possessions they must take into custody.

Yes, but that's wholly different from taking a DNA sample from them to then run through a giant database of unsolved crimes to see if you (or, in some cases, a relative) might possibly be implicated. And, then think of where this quickly gets you when the majority makes the following statement:

An individual's identity is more than just his name or Social Security number, and the government's interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee's birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody

Hmm. If an identity goes beyond just your name and basic stats info, then what might it include?

A suspect's criminal history is a critical part of his iden­tity that officers should know when processing him for detention

Yeah, but a person's hobbies, interests, writings, possessions, etc may also be a part of someone's identity, and yet those tend to be protected by the 4th Amendment. So what gives? As Julian Sanchez points out, couldn't the identical argument be used to say that any law enforcement should be able to also read an arrestee's email without a warrant? After all it would give them more "context" about his "identity."

This should be a hint: if your Supreme Court argument can be used to basically wipe out the entire 4th Amendment, it's probably not a very good argument.

In response, Scalia's dissent is well worth reading. It's blistering in its criticism of the majority opinion and very much on point.

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth
Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous. And the Court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work.

Scalia points out that allowing searches unrelated to a specific crime have only been allowed in very special circumstances, and this ruling blows that out of the water. Scalia notes that the whole claim that the argument that these DNA searches are just for identifying really does rip to shreds the basics of the 4th Amendment:

If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at "identifying" him, and no court would hold such a search lawful.

Furthermore, Scalia points out that the "identifying" claim is completely bogus because no one was using DNA to better identify the arrestee. It looks at the specific case of King, and notes multiple ways in which the DNA testing would have obviously been done differently if the purpose had been simple identification. They made no rush to sample the DNA, and, in fact were forbidden to by law, until he was arraigned 3 days later. And then it took months for anything to actually be done with the DNA sample.

In fact, if anything was "identified" at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.)
Rather, what the August 4 match "identified" was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim's attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own "identification" theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” King was who he was, and volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.

Furthermore, Scalia quotes the actual law in question, which lists out the only reasons why DNA evidence may be collected... and "identification" is not one of them.

Instead, the law provides that DNA samples are collected
and tested, as a matter of Maryland law, “as part of an
official investigation into a crime.” ... (Or, as
our suspicionless-search cases would put it: for ordinary
law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today.

Scalia concludes by pointing out the worst part of all of this: once convicted, it's established that a criminal can have their DNA sampled. And thus, this really only matters for one group: those innocent of the crime they were arrested for.

All parties concede that it would have been entirely
permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a
consequence of his conviction for second-degree assault.
So the ironic result of the Court’s error is this: The only
arrestees to whom the outcome here will ever make a
difference are those who have been acquitted of the crime
of arrest (so that their DNA could not have been taken
upon conviction). In other words, this Act manages to
burden uniquely the sole group for whom the Fourth
Amendment’s protections ought to be most jealously

And, finally, Scalia points out, as we did above, that the basic logic of the majority more or less justifies almost any search.

Today’s judgment will, to be sure, have the beneficial
effect of solving more crimes; then again, so would the
taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration
needs to know the “identity” of the flying public), applies
for a driver’s license, or attends a public school. Perhaps
the construction of such a genetic panopticon is wise. But
I doubt that the proud men who wrote the charter of our
liberties would have been so eager to open their mouths
for royal inspection.

The 4th Amendment was already on the ropes before this. It's pretty depressing to see the Supreme Court look to give it the knockout punch like that.

from the a-bit-late... dept

The US government's intimidation of anyone even remotely connected to Wikileaks is somewhat insane. The difficulty that former Wikileaks volunteer Jacob Appelbaum has every time he crosses the border is well documented. Two years ago, we noted that Immigrations and Customs Enforcement (ICE) had seized David House's laptop as he re-entered the country from a vacation. House has been a friend and supporter of Bradley Manning, and the feds kept his laptop for 49 days, and only returned it after the ACLU sent a sternly worded letter. House then sued the government. The government's defense was basically "we're the US fucking government and we can do what we want with your laptops at the border" (slight paraphrase). The court, however, didn't quite see it that way, and noted that politically motivated searches and seizures may be unconstitutional, under the First Amendment. This is important, because courts have let DHS/ICE ignore the 4th Amendment at the border, but here the court said that intimidating House and others could violate their 1st Amendment rights to freedom of association.

It's taken some time since then, but the feds have now agreed to settle the case, and more or less given in to all of the demands from House and the ACLU:

In a settlement reached with human rights activist David House, the government has agreed to destroy all data it obtained from his laptop and other electronics when he entered the U.S. after a vacation, the American Civil Liberties Union and the ACLU of Massachusetts announced today. House, who was then working with the Bradley Manning Support Network, an organization created to raise funds for the legal defense of the soldier who has admitted to leaking material to WikiLeaks, charged in a lawsuit that the seizure violated his Fourth Amendment rights by subjecting him to unreasonable search and seizure, and violated his First Amendment right to freedom of association.

More specifically:

Under the terms of the settlement, the government agreed to destroy all remaining data copied from House’s devices. The government will also hand over numerous documents, including reports describing Army CID’s inspection of House’s data as well as the DHS “Lookout” telling agents to stop House as he entered the country. The government further agreed to release reports on DHS agents’ questioning of House, which included inquiries about whether he knew anything about Manning giving classified information to WikiLeaks.

Some will argue that this is all way too late -- after all, the feds had that data for years, and the basic intimidation impact is still in place. However, hopefully this stops Homeland Security and ICE from continuing these kinds of politically motivated attacks.

from the ouch dept

Late on Friday (the time when people try to break bad news to avoid a big news cycle) the IRS admitted that the office that scrutinizes non-profit/tax exempt status of organizations had acted politically in targeting groups that had "tea party" or "patriot" in their names. Over the weekend, more details have been revealed showing that they further targeted groups that criticized how the government is being run including so-called "social welfare" groups. In other words: if you want to improve our government, the IRS might target you for a burdensome audit. As someone who regularly criticizes our government because I want it to act better, this is absolutely horrifying. I know that this issue has already descended for some into a "left" vs. "right" political battle, but this is an issue that everyone should be aghast about. While the full report hasn't been released yet (and, in fact, there are already accusations that the IRS has leaked parts to try to contain the fallout), some of the details are astounding:

The documents, obtained by The Washington Post from a congressional aide with knowledge of the findings, show that the IRS field office in charge of evaluating applications for tax-exempt status decided to focus on groups making statements that “criticize how the country is being run” and those that were involved in educating Americans “on the Constitution and Bill of Rights.”

Educating people about the Constitution and the Bill of Rights gets extra scrutiny by the IRS? Isn't that the kind of thing that we should be encouraging?

Are there groups that abuse the non-profit status? Probably. But targeting them based on their viewpoints goes way beyond what's allowed or should be seen as even remotely reasonable. As some have pointed out, politicizing the IRS was part of the impeachment articles against Nixon.

Is it so much to ask for a government that actually respects the Constitution? Or does simply asking for that make you a target?

from the we-know-what-happens-next dept

Techdirt has been following the fascinating saga of Iceland's crowdsourced constitution for nearly two years. Back in October 2012, we noted that Icelandic citizens gave it a pretty big thumbs up. Reflecting that, it really looked like Iceland's parliament might pass the associated bill, and go down in the history books for this bold re-invention of itself.

32 out of 63 members of parliament were induced by an e-mail campaign organized by ordinary citizens to declare that they supported the bill and wanted to adopt it now. Despite these public declarations, however, the bill was not brought to a vote in the parliament, a heinous betrayal -- and probably also an illegal act committed with impunity by the president of the parliament. Rather, the parliament decided to disrespect its own publicly declared will as well as the popular will as expressed in the national referendum by putting the bill on ice and, to add insult to injury, hastily requiring 2/3 of parliament plus 40% of the popular vote to approve any change in the constitution in the next parliament, meaning that at least 80% voter turnout would be required for a constitutional reform to be accepted in the next session of parliament.

In other words, not content with simply ignoring the will of the people to adopt this crowdsourced constitution, the Icelandic politicians have now made it even harder to bring in something in the future.

The poll gives the Icelandic Píratar 5.6% of the votes, translating to four seats in the Icelandic Parliament. This growth is nothing short of phenomenal, even within the Pirate Party movement, and it would seem that the Icelandic pirates will be the first to put people in a regular, proportional, national-level parliament. (Sweden was first with the European Parliament, Germany was first with state-level parliament, and the Czech pirates were first with a senator.)

As we've seen elsewhere, there's nothing like a little outrageous behavior from mainstream politicians to drive voters into the arms of the Pirates, so Falkvinge's understandably optimistic predictions may well turn out to be true. Let's hope so, if only as a punishment for the contempt shown by the Icelandic parliament for its people.

from the 2/3rds-of-americans-do dept

Earlier this week, we wrote about the latest defense by Homeland Security of their laptop search policies that (they claim) give them broad coverage to search laptops within 100 miles of the border. The latest bit of news was that an internal review found that there was minimal benefits to one's civil liberties in not searching their laptops, so it was okay (think about that sentence for a bit).

The 100 mile "buffer zone" part of that story gets most of the attention, but it isn't a new thing. They've been claiming that for a while. It's just that this is yet another attempt by them to give themselves additional support for those kinds of searches. In our comments, someone pointed us to a useful (and horrifying) map that the ACLU put together highlighting just how much of our country is within 100 miles of border/coastline, creating the Constitution-Free Zone Map -- which happens to cover about 2/3 of all American citizens.

Click through for the ACLU's interactive version. This isn't a new map, and, no one is claiming that these regions don't have any Constitutional protections, but it does effectively make the point of just how incredibly ridiculous it is for them to make these claims when it comes to laptop searches, which were already questionable enough at the border, let alone 100 miles into the country.

In some manner, it appears that the NRA's response is that the 2nd Amendment is more important than other amendments in the Constitution. Blaming music and movies is an attack on the 1st Amendment, which allows for freedom of expression, while turning our schools into police states, patrolled by armed guards, at least toes the line on the 4th Amendment. The database of mentally ill patients also raises significant privacy issues. No matter what you think of various gun control proposals, it seems rather ridiculous to take a strong Constitutional stand as the basis for your argument... only to make a complete mockery of other amendments.

from the but-but-terrorism dept

We've been discussing the now annual rush to re-approve the FISA Amendments Act, despite the fact that the original bill was on shaky constitutional ground, and it's been made much (much, much) worse due to a secret interpretation of what the law means (a secret interpretation that many in Congress apparently have no interest in finding out about). Andrew Napolitano, a former judge, has penned an interesting column laying out many of the reasons why the whole thing is completely unconstitutional. First, he notes that the establishment of FISA itself is likely a violation of the 4th Amendment:

The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power. So, under FISA, the feds needed to demonstrate to a secret court only that a non-American physically present in the U.S., perhaps under the guise of a student, diplomat or embassy janitor, was really an agent of a foreign power, and the demonstration of that agency alone was sufficient to authorize a search warrant to listen to the agent's telephone calls or read his mail.

Already troubling enough, but, as Napolitano notes, things weren't just left there. They've continued to stretch and change the conditions, taking it further and further into unconstitutional realms:

Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court. In fact, that court has rarely rejected anything, having granted search warrants in well over 97 percent of applications. This is hardly harmless, as foreign persons in the U.S. are frequently talking to Americans in the U.S. Thus, not only did FISA violate the privacy rights of foreigners (the Fourth Amendment protects "people," not just Americans); it violated the rights of those with whom they were communicating, American or non-American.

It gets worse. The Patriot Act, which was enacted in 2001 and permits federal agents to write their own search warrants in violation of the Fourth Amendment, actually amended FISA so as to do away with the FISA-issued search warrant requirement when the foreign person is outside the U.S. This means that if you email or call your cousin in Europe or a business colleague in Asia, the feds are reading or listening, without a warrant, without suspicion, without records and without evidence of anything unlawful.

It's just those Patriot Act amendments (the FISA Amendments Act) that is being debated right now. And given some of the questions being asked by politicians who understand the "secret interpretation" of the FISA Amendments Act, it appears that it actually gives law enforcement the ability to go even further. So it's not even just about emailing or calling your cousin in Europe, but as long as law enforcement (a) claims that it's related to a terrorism investigation and (b) they have no specific knowledge at the time of acquisition only that the communication is domestic -- then they can collect just about anything. So, under that interpretation, it appears that the NSA can just collect well, almost anything, by saying that it's all for the sake of a permanent and all encompassing terrorism investigation, and since they're just collecting absolutely everything, they have no specific knowledge at the time of acquisition that the communication is domestic.

Considering that Napolitano's argument starts from the idea that FISA itself is unconstitutional, looking at where we are now from where we started, we're no longer just in "unconstitutional" mode, in which we've tip toed over the boundary. We're now in a full on, 100% "let's mock the Constitution" mode. And, Napolitano, like many others, wonders why almost no one in Congress is willing to point this out:

Moreover, everyone in Congress has taken an oath to uphold the Constitution, which could not be more clear: "The right of the people to be secure in their persons, houses, papers, and effects..." shall not be violated, except via a warrant issued by a neutral judge upon the judge finding probable cause of crime. If we let Congress, which is a creature of the Constitution, change the Constitution, then no one's liberty or property is safe, and freedom is dependent upon the political needs of those in power.

The President and the leadership of both political parties in both houses of Congress have abandoned their oaths to uphold the Constitution. They have claimed that foreigners and their American communicants are committed to destroying the country and only the invasion of everyone's right to privacy will keep us safe. They are violating the privacy of us all to find the communications of a few. Who will keep us safe from them?

It's no secret that politicians use fear to increase their own power and to cut away at civil liberties. We have plenty of history that demonstrates that. It's just a real shame that so few people seem willing to speak out about this -- or that so few people even seem to care that the government has done this.

from the holding-the-debate dept

Since the GOP decided to chicken out on holding the very necessary debate on copyright reform, let's keep the debate going without them, and hope they join in. As we've discussed, the Republican Study Committee released a fantastic report from staffer Derek Khanna, and then retracted it under lobbyist pressure. The RSC wants to claim that the paper didn't go through its full review process, but we've heard from multiple sources that this is simply not true, and that the RSC is pushing this story to appease angry lobbyists (apparently the US Chamber of Commerce has taken over as the leader of the cause on this one, following the initial complaints from the MPAA and RIAA). Either way, all this has done is draw much more attention to the report, which you can still read here.

But, clearly, some in Congress realize this is a debate worth having. So if they're too afraid of some industry lobbyists, we might as well kick off that debate for them. We're going to do a series of posts digging into Khanna's paper. The paper, of course, starts off by debunking three commonly believed myths concerning copyright law, which are often used by policy makers to justify bad policies.

The purpose of copyright is to compensate the creator of the content:
It's a common misperception that the Constitution enables our current legal regime of copyright protection -- in fact, it does not. The Constitution's clause on Copyright and patents states:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8, Clause 8)

Thus, according to the Constitution, the overriding purpose of the copyright system is to "promote the progress of science and useful arts." In today's terminology we may say that the purpose is to lead to maximum productivity and innovation.

This is exactly correct, as we've discussed numerous times before. This is not to say that one of the results of copyright law is to compensate the creator. That's clearly a large part of how the law is supposed to function. The thinking behind this is not too complicated: if we can ensure greater compensation through limiting competition and supply via artificial monopolies, it drives up the price of those goods, leading to greater income.

But that theory includes several assumptions which may not be true. Let me present a hypothetical to make the point. I am not saying this is absolutely the case, but let's say we have scenario A and scenario B:

Scenario A
Artist's works are locked up under copyright, but he sells them for $1 per song downloaded.
Fans pay for and download 100 songs.

Scenario B
Artist frees up his work to the public domain, and encourages them to be spread freely.
Thousands of copies of the song are downloaded.
Artist sets up a Kickstarter to fund next batch of songs, and quickly raises $10,000

Again, I'm not saying that this is what happens in all cases. I'm just making this point: I don't believe that a single, sane person would argue that scenario A is better than scenario B. In scenario B the artist has more fans, more ability to make new music and more money. It's a much better position. But that income does not rely on copyright.

And that's the simple point that seems to get lost in this debate. Because copyright exists and is so prominent in the business model of artists, many incorrectly believe that it is the business model for content creators, and there can be no other. But, what we've really done is set up a crutch. Because the government has "picked winners and losers" by backing copyright as the core piece of a business model, most content creators have focused almost exclusively on monetizing via copyright. And thus, they argue, any attempt to change copyright is an attack on their incomes.

But, if we all agree that scenario B is a better scenario for the artist and for the consumer, then we've already shown that copyright, itself, may not be the best tool for artists seeking to make a living. I'm not saying that it absolutely isn't -- but that we have little evidence that copyright is actually the best such tool, and plenty of evidence that it can stifle and limit speech and creativity along the way.

There are many ways to make revenue as an artist. The Future of Music Coalition's Artist Revenue Streams worked out 42 different revenue streams for artists. Certainly, many of them rely on copyright, but a significant number do not. But content creators rarely get the chance to fully explore those other methods, because they're so wed to the idea that copyright is it.

Either way, if the idea is to maximize artist revenue, then we should be looking at what actually does that -- what actually results in greater artist revenue? Because there is no evidence that expanding copyright law seems to have that impact.

So all Khanna and the Republican Study Committee (briefly) were saying, was that the purpose of copyright law is to benefit "the progress of science and the useful arts." Part of that certainly may be to help artists make money, but that is not the ultimate goal, nor would it be reasonable as the ultimate goal. If we want to maximize artist revenue, let's explore that issue, but just assuming that's the goal of copyright is clearly faulty, leading to a very distorted market.

from the granting-rights-means-ceding-control----can't-have-that dept

For many school administrators, the default mode is to limit the rights of students while enforcing very broadly-worded policies. The default mode may start shifting, though, as more courts are reminding administrators that, while students' rights may be more constrained than those of adults, they're not nonexistent.

Recently, a court reminded a Minnesota school district that demanding a student's Facebook password was a violation of her First and Fourth Amendment rights. The judge stated:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door.

The Kentucky Supreme Court is considering a case from Nelson County that could require school officials to give the Miranda warning – You have the right to remain silent. Anything you say can and will be used against you ... – when questioning a student with a school resource officer present.

Miranda warnings are required when a subject is in custody – when a suspect thinks he’s not free to leave – and at issue is whether a student grilled in the principal’s office inherently fits that description.

This is an interesting question. Students being detained in principals' offices are generally granted "release" at the discretion of the administrator. It's certainly not a formal detainment, like being placed in a holding cell, but it certainly isn't optional either. The U.S. Supreme Court has said that a person is in custody when "the circumstances would lead a reasonable person to conclude he was not free to leave." This would seem to be the normal conclusion a student would draw from a mandatory visit to the principal's office.

In a brief for N.C., assistant public advocate Robert Strong says that when a student is sent to the principal’s office, “He is not allowed to leave until the principal says so.” In other words, a reasonable student would conclude he was in custody, “given the coercive nature of the principal’s office,” Strong says.

This case sprung out of an incident at a Nelson County school in which a student gave another student some prescription painkillers. The "school resource officer" (actually an armed deputy sheriff) charged the student with illegally dispensing a controlled substance. The student was sentenced in a juvenile court to 45 days in an adult prison (?). His appeal (which was denied) argued that his statement should have been suppressed because he wasn't read his Miranda rights before being questioned.

There's actually some related precedent for this case. The U.S. Supreme Court handed down a ruling on students and Miranda warnings last year in a case from North Carolina, stating that the student's age must be considered when determining whether they have a right to a Miranda warning.

The facts of that case, in which a 13-year-old was interviewed by police at school about a series of neighborhood thefts, were “eerily” similar to N.C.’s case, Strong said. The boy was escorted by an armed school resource officer to an office, where he was interviewed by the officer with an assistant principal present. Neither gave him a Miranda warning.

The U.S. Supreme Court noted the purpose behind Miranda is to keep subjects from being coerced into giving false confessions, to which children are particularly prone. “A reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go,” Justice Sonia Sotomayor wrote for the court.

Most students are probably unaware of their rights and administrators seem mostly unwilling to pass on that information. It's easier for adminstration if the students operate under the assumption that their rights are limited to whatever the school policies grant them. When students are being interrogated like suspected criminals, with an armed officer present, it would seem they should be granted the same rights as other criminals (especially if the end result is a stay at an adult prison) and be given a Miranda warning before any questioning occurs. This seems like the least the school could do. But, as statements by the administration director show, the district has no interest in granting students these rights.

Simple investigations would be hamstrung and schools would be less safe if principals, every time they question a student, “must look into a crystal ball and predict, ‘This could lead to criminal charges, I have to Mirandize this child,’ ” said Wayne Young, executive director of the Kentucky Association of School Administrators.

If you're bringing an armed member of law enforcement into the room, it would seem that you've already made that determination, or have gathered enough evidence to warrant their presence. But schools with law enforcement on staff have been known to bring them along for nearly any reason, possible criminal offense or no. The case mentioned above dealt with some supposedly "bullying" statements made on Facebook about a member of the school's staff and that interrogation involved three members of administration and a law enforcement officer armed with a taser. To handle one teenage girl.

And as for the feeling that "simple investigations" would be "hamstrung" by the Miranda warning? Too bad. The police have to do it and their investigations usually concern something more threatening to safety than Facebook status updates and painkiller distribution.

Young isn't done, though. He takes the same hardline many in law enforcement and various intelligence agencies do. Alleged criminals don't deserve rights.

“If a crime is being committed in school, if somebody is handing out pain medication, I don’t think we should be troubled with constitutional niceties.”

He said courts have given schools leeway on student free-speech issues and searches, which don’t require warrants in schools, because of the importance of maintaining safety and order on campus. “The goal is to protect all children, and it doesn’t bother me if a child’s constitutional protections are limited, if it is to protect all children,” he said.

That's the same excuse used by everyone from the local school to the NSA: "safety" trumps "constitutional protections." The fact that Young refers to Constitutional rights as "niceties" reveals the condescending and dismissive attitude he has for those under his control. It's little wonder he believes that students shouldn't be read the Miranda warning, as "niceties" like the Fifth and Sixth Amendment simply get in the way of "safety" and "order." (Without Godwin-ing anything, it's a bit chilling to hear someone openly value "order" over "personal freedoms.")

Young's fears that apprising students of their Miranda rights will upset order or compromise safety are irrational. Paul Holland, dean at Seattle University Law and a Youth Advocacy Clinic instructor, believes that if school administration is going to collaborate with law enforcement when questioning students, they should "err on the side of advising students of their rights."

Holland said the fear that safety would be compromised is ill-founded because the Miranda doctrine already contains an exception when there is an imminent threat – such as for questions about the existence or location of weapons on school grounds.

Even if a student’s answers are suppressed because of a Miranda violation and couldn’t be used in a criminal case, they still could be used to suspend or expel a student, he points out in “Schooling Miranda: Policing Interrogation in the 21st Century Schoolhouse.”

It is also likely that most students will waive their right to remain silent or to an attorney, he said. “Thus, the amount of information lost to Miranda would be slight.”

Advising students of their Miranda rights is granting them a modicum of control, something Nelson County's administrators seem loathe to do. This sort of atmosphere pervades many school districts, thanks to overreaching anti-bullying policies and a general push for greater control of every aspect of their students' actions, on or off campus. If actual dangerous suspects are granted this right, however begrudgingly, why is it such a problem to extend it to students?